Alberto Gonzales Files - Gonzales Reponse to Sen Ted Kennedy Questions

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    Responses of Alberto R. GonzalesNominee to be Attorney Generalto the Written Supplemental Questions of Senator Edward M. Kennedy

    I. General Request:Your answers repeatedly state that you do not recall certain key discussions

    on torture, that you do not know whether relevant documents and other materialsexist, that you have not conducted a search for such materials, and that you wouldrefuse to provide them because they involve "classified information, ""predecisionaP' or "internal deliberations," "deliberative material," or "noft'public" opinions.

    As you certainly know, however, there is no legal bar to providing classifiedmaterials or any of the other materials to Congress, and such materials have in fadbeen provided regularly to Congressional committees in nomination and otherproceedings. You yourself were directly ~nvolvedin providing sensitive executivematerials to the Intelligence Committees and the 9/11 Commission, and anincomplete selection oftortnre-related documents to the public last June. The onlyexception to the obligation to provide such materials is in the rare case where thePresident himself determines that his int~rest in secrecy outweighs the publicinterest in disclosure of the information or materials to Congress or the public, andhe himself invokes executive privilege.

    Refusal to provide the requested materials and information is inappropriateand unjustified in the present circumstances. It waS clear at the time you werenominated that your involvement in the prisoner detention and interrogation issueswould be a major concern of the Senate, and that the Senate would need fuOinformation and materials on this subject. Recent reports confirm serious abuses ofdetainees at severaJ locations, and your role in the denlopment of the legaljustifications that many believe facilitated and encouraged these abuses is a centJ"a1issue in the decision by the Senate on whether you should be confinned a51henation's chid law enforcement officer.

    I therefore request that you reconside r aUof your answers at the hearing andin your written submissions and that you provide the materials and informationrequested.For example, in your answer to 2(a) of my written questions to you, you do

    not describe your suggestions or opinions on the Bybee Memorandum, but youindicate that your officemay haveprovided commentsor suggested edits. Please.identify and provide any materials containing or reflecting those comments or edits,and any materials reflecting your knowledge of them or your role in them.

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    Please determine whether there are audio recordings, or other transcriptionsor records of any kind. relating to any of the meetings, events, discussions or facts inquestion.

    If any of the requested or relevant materials once existed but no longer exist,please describe what happened to them.Response: Respectfully, I have provided a great deal of jnfoonation through the answersI provided at the day long hearing onmy confmnation and in the nearly 450 writtenresponses I prepared over the Martin Luther King, Jr. holiday weekend to post-hearingquestions from more than a dozen different Senators. In all of my responses, I haveanswered truthfully, based on my recolJection.With respect to the specific points raised in your question, I can reaffinn that, I in factcannot recall with any specificity many of the discussions in which I participatedconcerning inteIrogations of detainees. I can in good faith try to provide you a generaldescription of the process, of the issues with which I was concerned, and of my viewsconcerning the role of Counsel to the President as part ofthat process. I have, throughmy responses to all of the Senators, attempted to provide such infonnation to theCommittee.With respect to your requests for documents, I have since the time of my nomination notbeen involved in responding to requests for documents that may have been created duringmy tenure as Counsel to the President. Decisions regarding the release ofWhite Houseor Department of Justice documents to the Committee are being made by other officialsat the White House and I have provided all of the documents that I have been authorizedto disclose. I do not agree, however, that the only "the only exception to the obligation toprovide. . . materials [requested by a Member of Congress] is in the rare case where thePresident himself determines that his interest in secrecy outweighs the public interest indisclosure of the information ormaterials to Congress or the public, and he himselfinvokes executive privilege," Instead, it is generally not the practice of this or prior'Administrations to provide a11documents requested by a Member of Congress wherethose documents contain highly deliberative or Presidential communications. Bylongstanding practice, no claim of executive privilege is necessary to decline to producesuch documents in response to such a request. It is on the basis of this practice, and inlight of the nature of the documents at issue, that Itmderstand the White House hasrespectfully declined to provide additional documents in addition to the many documentsit has already made public or produced in response to inquiries from Senators.I respect your interest in learning of my involvement in prisoner detention andinterrogation issues, and have attempted to provide asmuch information as I am able torecall, identify, and provide. With respect, I reject the charge that I participated in ..thedevelopment of the legal justifications" that "faciJitated and encouraged" abuses ofdetainees.

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    In response to your specific inquiry,so far as I am aware, there have never been anyaudio recordings OJ;ransl;riptions of any meetings in my office concerning these topics orany otheIS.

    II. Follow-up Requests on Specific Questions:Question #1: Discussions oflnterroe:ation Techniques.Please provide tbe "requested details of the meetings. including dates or timeframes,the persons present, and the recommendations. results. and assignments. In allanswers. if your recollections are non-specific or incomplete. state what you dorecallResponse: Since shortly after September 11, 2001 until the present, the Administrationhas been involved in conducting the War on Terror by gathering as much informationfrom terrorists as we possibly can within the bounds of Jaw. During that time, I haveparticipated in severa] meetings at which the possible use of methods of questioning werediscussed. These meetings may have included, from time to time, representatives fromthe National Security Counoil, the Department of State, the Depamnent of Justice, theDepartment of Defense, the Central Intelligence Agency, and others. In the meetings Iattended, agencies' representatives raised concerns that certain terrorists had informationthat might save American lives; the participants shared a desire to explore whether thereexisted methods of questioning these ten-oriststhat might elicit that information; and itwas always very clear that we would implement such methods onlywithin the bounds ofthe law. As Counsel to the President, my constant emphasis and interest was on the lastfactor - ensuring compliance with the law. It would not have been appropriate for me tocomment on iSSUC5uch as whether a particular individual may have infonnation thatwould be helpful to the effort to save American lives or defeat terrorists, or whether acertain procedure for questioning that individual would be effective in eliciting thatinformation. Others with more relevant experience, expertise, and infonnation wereresponsible for making those ju.dgments. Instead, it was my responsibility to ensure thatany method they deemed appropriate and effective from an operational point of view wasconside{Cdlawful by the Department of JUStice.To the extent I was involved inrecommendations, results, and assignments arising out of such meetings, my activitieswere directed toward ensuring that those with operational responsibility would act onlyafter receiving the judgment of (he Department of Justice that a proposed COU1"Sef actionwas lawful.

    Question #2: Your Role in the Bybee Memorandum.Please explain what you meant when you used the expression "forward leaning,"especially in any documents wbicb contain tbat expression. Please make sure tbattbe documents provided, and your refreshed rec:oUections,specify the persons whorequested the Bybee Memorandum, and the reason for tbe request.

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    Response: AI;1 said in the hearing, I do not recall ever using the tenn "sort of leaningforward" in tenns of stretchingwhat the law is. The expression "forward leaning"generally means, in my vie'\lf,to think creativelywithin the bounds ofthe law. In myjudgment, and the President's, we should do everything we can to win the war againstterrorists who kiJJinnocent civilians and do not fight according to the laws of war, andthis may well require that attorneys asked to give legal advice -like those personsresponsible for unique militaxyoperations - explore the possibiJities that the law pennitsdifferent solutions than those that have been tried before. That is not to say one stretchesor ignores the law to achieve a desired result, but rather that one should think crcativelyabout whether the law might permit new approaches in this unique war. I do not believethat I used the phrase "forward leaning" in anydocuments concerning the August 1.2002, memorandum.Questions #3 - 6: Documents Relatin2 to tbe Bvbee Memo.In these and other answers, when you use the phrases "no present knowledge of anydocuments" Dr"no present Imowledge that there are any documents," does thatmean that such documents existed or may have existed in the past? 1f so, pleaseidentify aDd describe them in detail and explain what happened to them. Do the twophrases have diHerent meanings to you? Where you yourself did not search fordocuments, please detail the steps by others assisting you to locate them.Response: In my responses to these questions, my use of the phrase "no presentknowledge of any documents" or "no present knowledge that there are any documents"was intended to indicate that I presently do not know of responsive documents, regardlessof whether they currently e;JCist,nd was not intended to indicate that I am aware ofresponsive documents that no longer e;JCist.The two phrases do not have differentmeanings in my judgment.Question #5: Your Chanl!e in Position on the Bvbee Memorandum.When. how and through whom did .Justice's Office of Legal Counsel "raisequestions" about the Bybee Memorandum? Please provide all relevant materials.The statement in the By~ee Memorandum that certain acts were not "torture " wasadopted and disseminated in 2002 and .-emained Administration policy until JUDe2004. At that time you and the President decided that these actions were in facttorture. Was that decision retroactive? Or was it prospedive, so that acts whichbecame torture under the new interpretation continued not to be considered tortu,"eif committed befDre.June20O4? 'Response: Lawyers within the Office of Legal Counsel raised some concerns about thememorandum before it had been leaked to the press in June 2004. My general reactionexpressed to staff and others in the Administration prior to the June 2004 pressconference was that people would incorrectly assume from the hypothetical discussionscontained in the August 1,2002, memorandum that the President was somehow relyhlgon those discussions as authority under our Constitution to engage in torture despite thestatutory prohibition, when that was not, in fact.,the case. The Executive Branch has asubstantial need for confidentiality not only with respect to non-public final OLC

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    President's personal attention and to present those views to the Presidr,mtas they in theirdiscretion saw fit.Question #8=Connectine: the Bvbee Memorandum to Operations in the Field.Please describe how, when and by whom the Bybee Memorandum, addressed toyou, was disseminated to DOD and other agencies. Since the military was alreadysubject to strict limitations under the Uniform Code of Military Justice, and wasalready subject to the President's previous mandate to treat prisoners humanely,what was the purpose of giving DOD detailed advice on when severely coerciveinterrogation tcchniques become "torture" under the Torture Act?Response: As you note, the August 1,2002, memorandum was not addressed to theDepartment of Defense. I do not recall when thememorandum was disseminated to thatDepartment or other agencies. Therefore, I aIIlunable to answer the second part of thequestion. In my experience, however, it is not uncommon for agencies to ask to obtaincopies of legal opinions on questions of interest to them, even if the opinion rojght notdirectly govern their conduct.(b) How did you become "aware" of what the DOD Working Group was doing withthe Bybee memo? What was your role, and the role of your office and aS$istants, inor with th~ Working Group? Provide details, and identify and provide relevantdo(;uments.Response: I believe I became aware that the DOD workingGroup reviewed (he BybeeMemorandum because 1was advised of that fact by the DOD General CounseL Neither Inor anyone on my staff had any ro]e in or with the Working Group. So far as 1 am aware,no employee of the Office of Counsel to the President ever met with the Working Group,provided any input into its consideration of the issues before it, reviewed or commentedon any drafis of its report, or otherwise participated in the Working Group process.Question # 9: Ghost Detainees.Does your answer to this question mean that the issue was never brought to theattention of or inquired into by your office?Response: 1 do not recall when I became aware of issues sUI.'I'oundingICRC access tocertain detainees, but I would have gained such awareness as an attendee a.tmeetings ofsenior Administration officials. I recall understanding that the Department of Defensewas investigating the issue. Based on that understanding, I believed that the Departmentof Defense would conduct an investigation and the Departments of Defense and Statewould address any issues regarding the JCRC, as had been customary and as it wasappropriate for them to do. It was not within my authority or practical ability as Counselto the President to conduct such an investigation into the actions of agencies outside theWhite House or to be a primary poine of contact with the ICRC.Question #10: The Goldsmith Memo on "Relocatin~" PrisonelS.You did not answer (b). (c) or (e).

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    (b) Was it your intent to justify the practice of maintaining ghost detainees?Response: No. It would never be appropriate to request a legal opinion with theintent to "justify" a practice or procedure. Articles 136 and 137of the GenevaConvention relative to the Protection of Civilian Persons in Time ofWar ("GC")require the United States promptly to notify the Red Cross, through the NationalDetention Reporting Center, "of any measure taken by it concerning any protectedpersons who are kept in custody for more than two weeks, who are subjected toassigned residence, or who are interned." The policy of the United States is tocomply with its obligations under the Geneva Conventions. As I indicated in myearlier response, the draft memorandum VIlasprepared to assist u.s. personnel toabide by all applicable legal requirements.(c) Why would it ever be necessary to hide a detainee from the International RedCross?Response: Article 143 ofthe GC provides tlllt Red Cross visits to protected persons"may not be prohibited except for reasons of imperative military necessity, and thenonly as an exceptional and temporary measure." SimHarly,Article 5 of the GCprovides that "[w]here in occupied teI1"itoryan individual protected person is detainedas a spy or saboteur, or as a person under definite suspicion of activity hostile to thesecurity ofthe Occupying Power, such person shaH,in cases where absolute militarysecurity 50 requires, be regarded as having fOrfeitedrights of communication underlhe present Convention." These provisions may authorize some restrictions on RedCross access to protected persons in certain e"ceptional cases. Conduct in acco:rdancewith these provisions does not constitute "hiding" detainees.(e) Was this and is this the intent of our policy?Response: No. The policy of the United States is to comply with all of our legalobligations under the GC.

    H the purpose of the draft memo was "to assist US. personnel [to) abide by aDapplicable legal requirements," and the draft was never finalized or signed, whatguidance did you provide to the CIA to fiUthat need? Please provide the detailedbasis and any documents you relied on for your conclusion that the Administrationhas complied with all of its "legal obligations to notify the ICRC. .,

    Response: I have been advised that although the memorandum was not finaHzed, CIAand DOD continued to consult with DOJ to make certain that any actions taken wereconsistent with all of our legal obligations, including any obligations to notify the ICRC-

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    (h) The Goldsmith memo indicates that the purpose of the proposed "relocation" ofdetainees out of Iraq was "to facilitate interrogation." In what way would therelocation materially "facilitate" interrogation? In what sense were facilities in Iraqinadequate to interrogate detainees in the manner permitted by law?Rcsponse: I belicvc the memorandum to which you refer was a draft that was neverfinalized. With respect to your particular question, I do not know how those on theground in Iraq b~lieved that relocation might facilitate interrogation. Nor do I knowwhether anyone reached the conclusion that facilities in haq were inadequate tointerrogate detainees in the manner promoted bylaw or~if anyone did so, what the basisfor the conclusion \Vas.Question #11: "Extraordinary Renditions."Do you believe that the ConventioD Against Torture prohibits any agency of theUnited States from turning over an individual in U.S. custody, but not within theterritorial boundaries of the U.S., to a nation where be would be in danger of beingtortured? Do you consider the U.S. Naval Base at Guantanamo to be United Statesterritory for the purpose of the Convention Against TortUre? Do you consider Iraqto be United States territory for the purposes of the Convention Against Torture?Has anyone in the Exeeutive Branch authorized or facilitated tbe transfer of anyperson in U.S. custody outside the territorial boundaries ofthe United States to anation wbere the person would be in danger of being tortured? If so, please identifyeach such person and the legal authority relied upon, and identify and provide alldoeuments reflecting the transfer.Response: The policy of the United States is not to transfer individuals to countrieswhere we believe they likely will be toItut'ed,whether those individuals are beingtransferred from inside or outside the United States. I am not aware of anyone in theExecutive Branch authorizing any transfer of a detainee in violation of that policy. Theprecise legal question you ask about the legal application of the "refouler" provisions ofArticle 3 of the Convention Against Torture ("CATn) or other legal prohibitions is acomplex one involving questions of extraterritorial effect, the Senate's declaration thatArticle 3 is not selfc.execoting,case law such as the Supreme Court's decision in Sale Y.Haitian Centers Council, inc., 509 U.S. 155 (1993), and the interplay ofstatutes such asthc prohibition against torture at 18U.S.C. 2340-2340A, the conspiracy statute andother laws, and 1have not personally studied it. However, United States policy is clear-the U.S. will not transfer a detainee to another country if it is'1ikelythat he wiUbetortured. Similarly, the question of whether Guantanamo is United States "territory" forpurposes of the CAT is a complex legal issue. "Territory" is not a defined term in theConvention. Notwithstanding the complexity of the legal question, however, UnitedStates policy is clear - the President bas directed that the United States is not to engage intorture anywhere in the .worldand is not to transfer detainees from anywhere in the worldto other countries wherc they likely will be tortured.

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    Question #15: The February 2002 Presidential Directive on Humane Treatment.(a)You say that the djre~tive waS limited to the Armed Forces because otheragencies are governed by "severaJ other laws." But the Armed Forces are alsobound by other restrictions that guarantee humane treatment. Thus your answer isnot pers...asive. Please re-answer. Did the President intend to exclude the C.IA,other ch"illan agencies and contractors from the requirement to treat detaineeshumanely? If not, how is.that requirement enforced. Did you advise him on thisissue?Response: It is my tmderstmding that the President has not issued a directive on thetreatment of detainees other than the February 7~2002, directive "reaffum[ing] the orderpreviously issued by the Secretary of Defense to the United States Armed Forces.~' ThePresident, however, expects all agencies to comply with their respective legaJ obligations.The PTesidentsaid - for example onMarch 31,2003 - that he expects detainees to betreated humane1y. As you know, the term uhurnanely" has no precise legal definition. Asa policy matter, I would define humane treatment as a basic level of decent treatment thatincludes such things as food, shelter, clothing, and medical care. I understand that theUnited States is providing this level of treatment for all detainees. I have been told thatwe are also meeting the substantive standards ofArticle 16of the CAT regarding cruel,inhuman; or degrading treatment. As I have also explained in my responses to 1(A), (B),and (C), the CIA and otrer non-militaIy personnel are fully bound by the prohibition ontorture in the CAT and by the criminal prohibition on tonure contained in 18U.S.C. 2340-2340A. In addition, depending on the circumstances, they arc bound by othercriminal statutes that may provide penalties for conduct constituting torture.

    (c) Please answer these q...estions and provide the publicly cited OLC opinions.Response: I have been advised by the White House that I must respectfully decline toprovide a copy of the opinions or to answer the questions posed about them.(d) Is your statement that the President does not condone tort...re "by US.personneP' intended to mean that be would allow non-U.S. personnel to tortureprisoners capturedby tbe U.S.?Response: No. The United States does not condone and would not permit torture bynon-U.S. personnel of prisoners captured by the United States.

    Question #20: SUDDortfor a ComDrehensive Investi2ation.You did not answer any part oftbis question. Unless you believe you bave a conOictof interest in answering these questions, please answer each part.

    i. Do you support a comprehensive investigation, beyond the past and currentinternal Defense Department inquiries, into all of the allegations of abuse?Response: As I noted in my original response, there have been eight completedinvestigations, and there are three ongoing investigations. There have been numerous

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    trials, courts martial, and administrative proceedings. These investigations andproceedIDgsshould be allowed to continue. I have no reason not to believe that oncecompleted; these proceedings 'tI'illresult in a complete and comprehensiveinvestigation and adjudication of derainee operations. Once they are completed, theappropriate individual. whether that is the Secretary of Defense, the Attorney General,or some other individual. should make a decision as to whether an additionalinvestigation is necessary.n. Describe the form of investigation that you would r:ecommen~ including, butnot limited to, the agency that should condud the investigation, whether theresults sht)uld be publicly available, the powers of the investigators, and thetiming of such an investigation.Response; I wou1dnot be in a posture to recommend any such investigation until thecurrent investigations and proceedings were complete. As indicated above, thecompletion of such proceedings and investigationsmay likely result in a complete andcomprehensive investigation and adjudication of detainee operations. It is in myjudgment premature to discuss an additional investigation.iii. Givcn the possibility of criminal proceedings in which you might be awitness, would you follow Attorney General Ashtroft's example and allow theDeputy Attorney General to appoint a special prosecutor?Response: As I said in my earlier responses, if confirmed, I would take extremelyseriously my obligation to recuse myself ftom any matter whenever appropriate andwould consult with other lawyers at the Department of Justice if any such questionswere to arise. As 1 indicated above, the ongoing investigations and proceedingsshould be allowed to continue. Once completed, the appropriate individual, whetherthat is the Secretary of Defense, the Attorney Genera], or some other individual,should make a decision as to whether additional investigation is necessary.iv. If Congress decides to create a 9/1l-type commission to make acomprehensive investigation into the reports of abuse, will you urge thePresident to sign such legisJation?Response: As I indicated above, the ongoing investigations and proceedings shouldbe allowed to continue. I could not commit to making a recommendation either wayuntil all such investigations and proceedings are completed.

    Question #21: Your Role in Attorney General Ashcroft's Committee Appearance.Did you tell the Attorney General that he could refuse to provide documents tt) theCommittee without invoking any privilege? Did the President approve tbatdecision?Response: I recall that I participated in discussions regarding what documents should bedisclosed and which should remain confidential to protect the deliberative process,

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    national security Orother vital interests. I don't recall any discussion ofwhether anyprivilege should be invoked. It is my understanding that there has been a longstandingtradition of protecting the confidentiality of the deliberative process, a tradition thatCongress has recognized.

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